Friday, September 01, 2006

More Electoral College Obsession

Recently the California State Senate approved joining the interstate compact to hand over its electoral votes to the winner of the popular vote -- as is its right to assign electors in whatever manner it sees fit, and helping subvert my bete noir, the Electoral College. Lawyers, Guns and Money does the heavy lifting, so I can continue to focus on the script pages.

390 comments:

I believe that the Electoral College has served us fairly well for the last 217 years -- a minority opinion for readers of this site due to dissatisfaction with the result of ONE election, but so be it. If we all shall live another 217 years, I doubt that we will ever see the National Popular Vote farce become reality. However, suppose that enough states with sufficient electoral votes agree to this compact before 2008. Allow me to offer a few scenarios of how things might play out.

Just for the sake of argument, let's say that 2008 is Gore vs. Gingrich -- yes, that my prediction and you read it here first.

Gore wins the popular vote nationally, but Gingrich wins the electoral vote. Gingrich wins my state of Michigan which has joined the compact and now intends to have its vote go to Gore. I voted for Gingrich and he won my state but now my state's votes are being recorded for Gore. My winning vote is not being counted as I intended. I'm pissed off beyond belief. I have now suffered an injury and have standing to sue... and I sue. Oh boy, do I freakin' sue.

Let's reverse the result a bit. Gingrich wins the popular vote, Gore wins the electoral vote, and Gore wins California. I guarantee that someone in California sues. It might even be someone who thought that the compact was a great idea until it lost the election for his candidate.

If the compact becomes reality, the resulting clusterfuck of lawsuits will make 2000 look like a picnic. I have no problem with changing the way we elect our President or the popular vote deciding the election -- PROVIDED THAT IS WHAT THE CONSTITUTION STATES. Just garner enough support to amend the Constitution rather than do an end run around it.

So you're saying, with a straight face, that if 60,000 votes, 1.5% of ONE STATE'S ELECTORATE, verily a tenth of a percentage of the national votes cast, had gone the other way in Ohio and Kerry had won the Electrol College despite Bush winning a much larger majority vote total in the 2004 election than Gore had in the 2000, that the Republicans would have kicked back and gone "fair enough"? That the nation, as a whole, should have kicked back and let such a grievous injury to democracy stand? That there would have been no suits THEN? HEll, most people don;t know this, But Bush's team laready had a legal team and talking points in place to argue against the Electoral College if things had gone the other way.

The situation you describe -- disenfranchisement -- occurs to varying degrees in many states do to the Electoral College, particularly as the College representation for each state includes its Senators.

If you live in a state where you are in the overwhelming -- or even just statistically significant - minority, there is essentially no point to your vote, thanks to winner take all. A Republican in California is just as effectively disenfranchised as a Democrat in Utah. Hell, odds are, no candidates' coming to campaign to you or address your issues anyway, if you're not in a swing state. Oh, and if you live in Pennsylvania, congratulations -- A person from Wyoming's vote is worth four of yours, when you compare population to percentage of electoral college votes. They must be somehow more American than you.

Not to mention the fact that most opponents of Electoral Vote reform focus on the 2000 race as if it's a complete anomaly. In no less than four elections -- 1878, 1888, 1960 and 2000, the Electoral College awarded the Presidency to the loser of the popular vote. Never mind 1800 where the 3/5 rule got Jefferson in, and the contingent election in 1824. Set those aside, and in 1836, 1948, 1968 and 1976, a shift of less than %1 of the national vote -- in most of them a shift of less than .5% of the national vote in the wrong state would have tossed the election to the popular vote winner. And as election margins get thinner, we're not going to keep dodging that time bomb. It was only thanks to either blind luck or canny election-rigging -- depending on your viewpoint -- that we did not wind up with two spoiled elections in a row.

Although I often see arguments about increased election fraud waved about in defense of the EC, it makes absolutely no sense -- it's easier to steal an election with the EC, where just one or two (always party-run on the state level) elections need to be queered, then coordinate a fifty-state fraud platform, often involving electoroal commissions run by your opposing party. An idiot can steal 60,000 votes in one state. It'd take Lex Luthor to steal 3 million nationwide. And the assumption that somehow, previously honestly-run state elections will suddenly rocket into corruption, that's puzzling.

There's also the "small-state issues" argument and the minority empowerment argument, but those hold no water either -- Edwards book "Why the Electoral College is Bad for America" parses all those out with more than hoary old calls for honoring the Founding Fathers -- he grinds through the number of speeches and visits the candidates actually made during the most recent campaigns. The data -- not rhetoric -- data is damning.

The problem with amending the Constitution is that the small states whom the EC benefits also wield (intentionally, mind you) disproportionate influence in the Senate, so the Amending supermajority will NEVER pass. The last serious attempt to change the Electoral College was -- and I may be off here, my DSL is sloppy right now -- 1989, where the motion passed the house by a massive majority and died in the Senate.

Citizens of California and other states are seeking to defang this archiac, broken system through the Constitution itself, as the Constitution allows States to assign electors in any way it sees fit.

There is indeed a "farce", but the system that determines every other elected official in every other election in this nation ... is not it.

Before I respond to your questions and comments, I need to vent about Ohio 2004 complaints... Ohio wasn’t nearly as close as Kerry supporters think it was. Bush’s margin of victory in Ohio (50.81% to 48.71%) was almost as large as it was nationwide (50.73% to 48.27%). For Kerry to have won in Ohio, it would have taken a shift of the entire nationwide electorate. Ohio accurately reflected the national vote and to look at Ohio in a vacuum is silly especially when you look at a few other states as well.

New Hampshire was the only Bush state to go for Kerry and Kerry won New Hampshire (50.27% to 48.87%) by a much smaller margin than Bush did Ohio.

The margin in Ohio was also much larger than it was in the Kerry state of Wisconsin (49.70% to 49.32%), a state where I see far more compelling evidence of fraud than Ohio.

While Kerry’s margin of victory in Minnesota (51.09% to 47.61%) was greater than Ohio, I find the reports of Democrat voter fraud, disenfranchisement, shenanigans, etc. in Minnesota much more credible than alleged Republican efforts in Ohio. That also goes for New Mexico and Florida, but since Bush won those two states, the cheating that I allege failed, so I’ll let it go.

People really need to stop obsessing about what did NOT happen in Ohio. In honor of one of the most misnamed and anti-Bush groups out there, Kerry supporters truly need to MOVE ON.

Okay, now what you brought up...

Rogers said: So you're saying, with a straight face, that if 60,000 votes, 1.5% of ONE STATE'S ELECTORATE, verily a tenth of a percentage of the national votes cast, had gone the other way in Ohio and Kerry had won the Electoral College despite Bush winning a much larger majority vote total in the 2004 election than Gore had in the 2000, that the Republicans would have kicked back and gone "fair enough"?NKS responds: As I don’t speak for all Republicans, I can only speak for myself. I find the idea of “President Kerry” to be a distressing one and that would have held true regardless of the margin in the popular vote and the electoral vote. If your scenario had prevailed, I would have been deeply disappointed. However, I would have accepted it. If Kerry had legitimately won the electoral vote while losing the popular vote I might have complained that Kerry won BUT I would not complain about HOW Kerry won. Considering how Bush won in 2000, any complaints of an Electoral College reversal in 2004 would not be credible no matter much Bush won the popular vote by.

Rogers said: That the nation, as a whole, should have kicked back and let such a grievous injury to democracy stand?NKS responds: I just don’t view your scenario as “a grievous injury to democracy.” The REPUBLIC would have survived as it did in 1824, 1876, 1888 and 2000 when the popular vote winner lost in the Electoral College.

Rogers said: That there would have been no suits THEN? Hell, most people don’t know this, But Bush's team already had a legal team and talking points in place to argue against the Electoral College if things had gone the other way.NKS responds: As did Kerry. As did Gore AND Bush in 2000. As did every presidential candidate for quite some time. There is a reason why election law has been taught in just about every law school for quite some time -- a class I was fortunate enough to avoid. Meanwhile, most people don’t know THIS… Much of Gore’s internal polling showed that the expected result in 2000 was going to be Gore losing the popular vote while winning the electoral vote. Gore’s biggest problem in the post-election fight was that he wasn’t nearly as prepared to fight the actual and unanticipated result.

I am very aware of how difficult it is to amend the Constitution. As far as your California vote “not counting as much” as others’ (my Michigan vote included), maybe it’s unfair. Maybe it’s grossly unfair. However, it is constitutional. I believe that the National Popular Vote compact is unconstitutional and that offends me much more than the unfairness you complain of. I believe that there is a better argument under the Equal Protection Clause than the one successfully argued in 2000’s Bush v. Gore. Without the compact, your votes for Gore and Kerry (I’m assuming this is how you voted and I apologize if I assume incorrectly) were recorded as votes for Gore and Kerry. Your vote might not have had the “power” of a Bush vote cast in Wyoming, but the integrity of your vote is intact. Under the compact, your vote can be switched just so it can be in accordance with the national mood.

Rogers said: If you live in a state where you are in the overwhelming -- or even just statistically significant - minority, there is essentially no point to your vote, thanks to winner take all.NKS responds: I fail to see the point of my vote if I cast it for a candidate who wins in Michigan and then have Michigan’s electoral votes be appointed for the candidate who lost in Michigan. I cannot begin to express how unfair I think this is. Under the compact, a citizen’s vote can lose its integrity. While the Constitution does allow States to assign electors in any way it sees fit, the States may not violate the 14th amendment in doing so.

John, I’m a lawyer (insert appropriate lawyer joke here…) and I believe in the Constitution. As a lawyer, I took an oath to defend and protect the Constitution and that oath meant something to me. I know that many lawyers see the Constitution as a game and the law as a way to mess with people but I don’t. Amending the Constitution, while difficult, is not impossible. It has been done 27 times. There is a proper way to change the law but the National Popular Vote compact is not the way to go about it.

Rogers said: Although I will agree, Gingrich may edge out McCain, depending how the 2006 elections go. I don't think you'll get Gore, though. Edwards or Warner.NKS responds: If I could accurately predict such things I would spend all my time at a sportsbook in Vegas. Meanwhile, I must apologize for the length of my last response. It’s way beyond bordering obnoxious. If I have that much to say, I should probably start my own blog but I’m too lazy to do so. How do you feel about other important issues? Sean Connery or Roger Moore? Betty or Veronica? What about the designated hitter rule? Am I a horrible person to enjoy Celebrity Fit Club as much as I do?

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

This very clearly gives each state legislature complete autonomy in determining the criteria used for selecting electors. Selecting electors which ratify the national popular vote is just as valid as selecting electors which ratify the state district or popular vote.

Or just as valid as the original intention of the Constitution, which was clearly to allow the legislatures to appoint the electors themselves.

Neil, I'm not bringing up Ohio as a Kerry fetishist -- I'm just bringing it up as the state we were all frikkin' waiting on at 2 am. As will probably be the case from now on. It or Florida. Or some goddam swing state.

Yes, you can play the "flippin'" game all night -- although I'm not sure you can properly apply your overall statistical model of claiming that Ohio's odds of flipping were minor because they match the national average -- after all, the actual vote differential nationwide was 3%, while out of 3141 counties in the US, only 310 were decided by less than 5% (or, depending on the granularity you prefer,12 states out of 50) No real correlation there, national to regional.

We can agree to disagree about voter fraud in Ohio, a state where the courts found Ken Blackwell improperly interfered with the electoral process no less than three times. You're dug in on Democratic voter fraud. Fine, then we can however agree on one thing -- it only makes sense to pursue voter fraud in certain states, the states we both mentioned -- why, Because the system itself is gamed. The Electoral College itself createsa s system which makes voter fraud feasible as a nationwide but focused electoral strategy. Why in the name of God is that desirable or defensible?

If your scenario had prevailed, I would have been deeply disappointed. However, I would have accepted it. If Kerry had legitimately won the electoral vote while losing the popular vote I might have complained that Kerry won BUT I would not complain about HOW Kerry won. Considering how Bush won in 2000, any complaints of an Electoral College reversal in 2004 would not be credible no matter much Bush won the popular vote by.

But isn't that precisely the point? It doesn't matter if the complaints were credible, or fair, tit for tat, what matters is that the wrong man would be President. I will be blunt, and I am not being noble -- as much as I find President Bush a spectacularly unfit President, I would have been as deeply upset at Kerry being given the Presidency after losing the popular vote as I was unhappy about Bush taking the election in 2000 after those shenanigans. I even had a lovely essay written, in case of such a scenario, called "NOW can we get rid of the electoral college?"

I think we just have a disagreement here -- I consider that the winner of the popular vote not getting the Presidency to be a grievous problem. You see it, as long as it doesn't bring down the Republic, not so much of one. I think a system which has failed to produce the desired result in 10% of the time, and come within a hairs-breadth of failing another 10% is a bad system, particularly when a perfectly alternative exists. Also, considering the way the American electorate is evolving, this is a situation thats only going to get worse. Agree to disagree on its severity and priority.

Much of Gore’s internal polling showed that the expected result in 2000 was going to be Gore losing the popular vote while winning the electoral vote. Gore’s biggest problem in the post-election fight was that he wasn’t nearly as prepared to fight the actual and unanticipated result.

It's not like I was accusing Bush of skullduggery. My point being, this is not a partisan issue that only Democrats are pursuing to their own ends, as it has often been portrayed. Robert Dole, Gerald Ford, John McCain and other have been behind previous drives to change the EC.

I am very aware of how difficult it is to amend the Constitution. As far as your California vote “not counting as much” as others’ (my Michigan vote included), maybe it’s unfair. Maybe it’s grossly unfair. However, it is constitutional. I believe that the National Popular Vote compact is unconstitutional and that offends me much more than the unfairness you complain of. I believe that there is a better argument under the Equal Protection Clause than the one successfully argued in 2000’s Bush v. Gore. Without the compact, your votes for Gore and Kerry (I’m assuming this is how you voted and I apologize if I assume incorrectly) were recorded as votes for Gore and Kerry. Your vote might not have had the “power” of a Bush vote cast in Wyoming, but the integrity of your vote is intact. Under the compact, your vote can be switched just so it can be in accordance with the national mood.

"Your vote" is intended to be for the President. Under your complaint, your vote is "switched". Under the current system, my vote is "ignored". I consider that the greater unfairness.

And by "national mood" I assume you mean "democratic election results."

This is where I'm stumped. How the hell is the "integrity" of my vote intact when its relative influence on the election depends on what sate I'm in? 50,000 Bush or Kerry voters in Wyoming are worth more than 50,000 Bush or Kerry voters in New York, as far as tilting the balance of the election. Shall we return to the days of the old west, where bivouacing soldiers were shipped around to sway elections? How is that any different in principle? You argue that the changes would violate the 14th Amendment and therefor be unconstitutional. I argue that the system as is violates the 14th Amendment.

Rogers said: If you live in a state where you are in the overwhelming -- or even just statistically significant - minority, there is essentially no point to your vote, thanks to winner take all.NKS responds: I fail to see the point of my vote if I cast it for a candidate who wins in Michigan and then have Michigan’s electoral votes be appointed for the candidate who lost in Michigan. I cannot begin to express how unfair I think this is.

Okay, but if I cast my vote for the candidate who wins the NATIONAL POPULAR ELECTION BY A MARGIN OF MILLIONS OF VOTES, and instead have my electoral votes appointed to the candidate who LOST NATIONWIDE, that's somehow not unfair?

I think we're arguing at this from two distinct points -- you as a hypothetical aggrieved voter of a state, and I as a hypothetical aggrieved voter of a nation.

Under the compact, a citizen’s vote can lose its integrity. While the Constitution does allow States to assign electors in any way it sees fit, the States may not violate the 14th amendment in doing so.

So is Maine and Nebraska's "2 to the popular vote winner" violating the 14th Amendment? Would proportional representation violate the 14th Amendment? We seem to be dancing around this definition of disenfranchisement -- you argue that if your will as the voter of in a State is subverted, you are disenfranchised. I argue that if your will as a voter in the nation is subverted, you are disenfranchised. Seeing as we're talking about the only truly national election, I can't say I go with you. You seem to be treating the Electoral College as an end in itself that just happens to produce the President of the United States, while I rather see it as the other way around.

I'm not pyschic, but to me a great deal of your distress with the Compact is your perception that it's somehow cheating or gaming the Constitution. You argue that my part of the Constitution breaks your Part of the Constitution. I'm arguing your part of the Constitution is already broken, and my part is just fixing it. We disagree -- so let it go to the Courts, then. If it needs to be hacked out in lawsuits, let it be. Let the system work. if it gets messy, that's a sign of a problem that needs solving. I just think you're going to have a very hard time arguing the case as the situation will probably be the compact kicking into gear to support the winner of the popular election ... you're going to be the lawyer arguing that the "national mood" -- that is, the guy who actually won the election, with the greatest number of voters -- should be ignored. That his voters matter less, because they live a 100 miles too far east or west. I'm hoping that will finally piss people off enough to make their Senators stop pandering and do the right thing.

Oh, and Connery, Veronica, the DH rule is an abomination, and Celebrity Fit Club can't hold a candle to Project Runway.